Stellazina and Stellazina

[2007] FamCA 664

FAMILY COURT OF AUSTRALIA

STELLAZINA & STELLAZINA [2007] FamCA 664

FAMILY LAW - PROPERTY SETTLEMENT - Consent orders

Family Law Act 1975 (Cth)

APPLICANT: MRS STELLAZINA

RESPONDENT: MR STELLAZINA

FILE NUMBER: MLF 3295 of 2004

DATE DELIVERED: 12 FEBRUARY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 12 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DICKSON

SOLICITOR FOR THE APPLICANT: HARLEYS

COUNSEL FOR THE RESPONDENT: MR MAWSON

SOLICITOR FOR THE RESPONDENT: MAEVE O'BRIEN & ASSOCIATES

ORDERS

1. THAT The Husband and the Wife do all things and sign all documents to:

   a)transfer to the Wife at her expense all shares held by him in L Pty Ltd and C Pty Ltd (“the companies”);

   b)have the Husband resign any office bearing position in the companies and take any steps required to appoint the Wife as a director;

   c)have the Husband resign his power of appointment in relation to the Stellazina Trust No 1 and the Stellazina Investment Trust (“the Trusts”) and cause the Wife to become the appointor of the Trusts;

   d)cause to be filed the taxation returns for the Trusts for the years ending 30/06/2005 and 30/06/2006 such returns to reflect distribution of income in accordance with Schedules 3B and 3C of the report of Mr KF dated the 4^th December 2006 (“the KF Report”);

   e)transfer to the Trusts any shares listed in Schedule 2C of the KF report  not already held by the Trusts (together with the B and T shares referred to in the Husband’s Case Summary document or the benefits relating to such shares);

   f)assign to the Wife any loan account in favour of the Husband and /or in favour of R Pty Ltd;

   g)transfer to the Wife at her expense all the Husband’s right title and interest in B property (“the home”);

   h)remove the Husband as a beneficiary of the Trusts.

2. THAT the Wife do all things and sign all documents to:

   a)resign any office bearing position she may hold in Stellazina Company, Z Company and R Pty Ltd (“the business entities”);

   b)transfer to the Husband any interest (including any shareholding) she may hold in the business entities.

3. THAT the Husband indemnify the Wife in relation to all liabilities of, or arising from the Wife’s involvement or association with, the business entities (including any employment benefits relating to the Husband’s accountancy practice).

4. THAT the Wife indemnify the Husband in relation to all liabilities of, or arising from the Husband’s involvement or association with the companies and the Trust (save for the taxation payable on the 2005 and 2006 divided income of the Trusts, which income is to be distributed for accounting purposes only, to R Pty Ltd) including not limited to, any Capital Gains Tax upon the sale of the shares owned by the Trusts.

5. THAT unless otherwise specified in these Orders (save for enforcement purposes):

   a)each party retain all assets in their respective possession as at the date of these Orders (the caravan being deemed to be in the Husband’s possession);

   b)each party be solely liable for any liability relating to any property being retained by that party pursuant to these Orders;

   c)each party retain their respective superannuation entitlements;

   d)any joint tenancy is hereby expressly severed.

6. THAT the Wife remove any caveats lodged by her or on her behalf over any real property being retained by the Husband.

7. THAT otherwise all previous Orders be discharged (save for any Costs Orders).

8. THAT all applications be otherwise dismissed and removed from the Pending Cases List.

   IT IS CERTIFIED

9. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

IT IS NOTED

A.THAT the parties have agreed to enter into a Child Support Agreement providing for the Husband to pay, or cause to be paid, the children’s school fees, and associated educational expenses and $100.00 per child per week until each child turns 18 or finishes Year 12, whichever is the later.

B.THAT the parties intend these Orders shall as far as practicable finally determine the financial relationship between the parties and avoid further proceedings between them.

C.THAT these Orders are predicated on the basis that the only loan accounts in the Trusts are in favour of the parties and/or R Pty Ltd.

D.THAT the parties intend that the Wife is to retain all of the assets of the Trusts notwithstanding that distributions are to be made (for the purpose of the filing of returns) to R Pty Ltd, and paragraph 1(f) is intended to include any loan account arising from such distributions.

E.THAT to the parties’ knowledge, there are no third party liabilities of the Trusts.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3295 of 2004

MRS STELLAZINA

Applicant

and

MR STELLAZINA 

Respondent

REASONS FOR JUDGMENT

1. In the matter of Stellazina, Mr Dickson of counsel appears for the wife and Mr Mawson of counsel for the husband.

2. Both parties and instructing solicitors are in court and have been present throughout the out-of-court negotiations.

3. This matter has now resolved and I am asked to make orders by consent which deal with all property and financial issues as between the husband and wife.  The orders also provide a notation that there is a negotiated child support agreement to be entered into between the parties.

4. I have read all of the affidavits and financial reports and statements that counsel for the parties indicated they would rely upon in these proceedings.  I have now read the consent orders.  I have had submissions from counsel as to the financial structure and outcome of the orders. 

5. It does seem by mutual agreement that the wife is retaining somewhere between 72 per cent and up to 75 per cent, on a gross basis, of the non‑inherited assets of and accumulated through and after the marriage of the parties.  The summary of what the wife retains is predominantly the shareholdings of each of the entities as identified in the report of Mr KF and are the subject of the orders sought by the wife.  Their gross value is approximately $770,000 as at this date.  Subject to all taxes on sale it has been indicated to the court the wife will take appropriate financial planning advice as to the disposition of shares or otherwise as she may deal with those shares or invest or transfer them at her financial benefit.  Otherwise she will own two properties - the B home and the E investment property - together with motor vehicle, furniture and her superannuation and other publicly-listed shares to a value of some $20,000.

6. I have some level of issue as to the additional superannuation with O Company, but if it is that there is $70,000, as the husband's counsel has identified and has advised the court is in fact the case, the reality is that the wife has $250,000 in gross superannuation entitlements.  At 44 years of age they are to be deferred for another decade or thereabouts.

7. On the other side of the ledger, the husband retains the balance of the matrimonial assets, primarily his superannuation of approximately $375,000 - it also to be deferred as he is 45 years of age - and the value of his accounting practice and other assets, including his equity in his newly-acquired property at S with his new partner.  The husband otherwise retains the inherited assets and term deposits, such as they may have been proven by evidence to be as to quantum.

8. As I said, I am aware of the particular facts of this case, the financial history and the background of the husband, otherwise the wife's history within the marriage and with the three children whose ages are now 17, 15 and 9. 

9. It is necessary in matters like this for courts to give proper recognition to the consent and intention of the parties when they resolve matters.  In this case I well understand that there are experienced counsel who are frequently engaged in commercial matters and have an understanding of the structure of these orders, of what they have negotiated for their clients.  The clients have also had the benefit of solicitors of experience and I am advised the wife has had an independent financial adviser, albeit however late in the circumstances, to give her some guidance and advice, and very clearly financial planning is required by the wife.  At whatever little cost it might be, the benefit will clearly be substantially worthwhile.

10. I am also conscious that much of the wife's cash settlement is taken up in shares and her future is therefore dependent upon publicly-listed shares in the current market, and she needs to take her own advice and care, given that the market is at new records and one can never predict the future and I will not try and predict the future.

11. In summary, I will accept that this outcome negotiated between the parties does provide a just and equitable result and I will accordingly pronounce orders in the form of these minutes but which are to be re-engrossed with care by counsel and when approved of in this form by counsel, solicitors and the parties, then to be forwarded by next Wednesday to my associate.

12. Accordingly, I will make the appropriate finding under section 79(2) of the Family Law Act.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date:6 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STELLAZINA & STELLAZINA